Ernest DeWayne Jones v. Robert K. Wong

Filing 40

REPLY in Support of MOTION for More Definite Statement 32 filed by Petitioner Ernest DeWayne Jones. (Laurence, Michael)

1 MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
2 CLIONA PLUNKETT, State Bar No. 256648
3 HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
4 San Francisco, California 94107
Telephone: [phone]
5 Facsimile: [phone]
[e-mail]
6 [e-mail]
7 Attorneys for ERNEST DEWAYNE JONES
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9

UNITED STATES DISTRICT COURT

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FOR CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

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12 Ernest Dewayne Jones,

Case No. CV-09-2158-CJC

Petitioner,

DEATH PENALTY CASE

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v.

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REPLY TO OPPOSITION TO
MOTION FOR MORE DEFINITE
STATEMENT

15 Vincent Cullen, Warden of California
State Prison at San Quentin,
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Respondent.
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NO HEARING ORDERED

In June 2008, the California Commission on the Fair Administration of Justice

19 issued its Final Report, concluding – as did California Supreme Court Chief Justice
20 Ronald M. George – that “California’s death penalty system is dysfunctional.”
21 California Commission on the Fair Administration of Justice, Final Report (hereafter
22 “CCFAJ Report”) 114 (3) (2008).1

Among the several reasons supporting the

23 Commission’s findings are: (1) the inability of the California state system to identify
24 and resolve factual disputes in habeas corpus proceedings;2 (2) the California Supreme
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1

The Death Penalty Report is available on the Commission’s website,
http://www.ccfaj.org/rr-dp-official.html, with different pagination than the published
27 Final Report. In this Reply, page numbers in the internet version are provided in
parentheses following the published Final Report page numbers.
28 2
See, e.g., CCFAJ Report at 118 (13) (recommending changes in procedures “to
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1 Court’s failure to grant relief in meritorious cases; and (3) delays in the state and
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2 federal court proceedings. As a result, California death penalty cases entail numerous

3 years of post-conviction litigation, with the vast majority having the death judgment
4 vacated by federal courts. See, e.g., id. at 122, 125 (22, 29) (noting that federal courts
5 ultimately grant relief in 70% of the cases after an average of 16.75 years of litigation).
6

Petitioner filed the Motion for a More Definite Statement (hereafter “Motion”)

7 to address the California system’s failure to identify or resolve disputed factual issues
8 and ensure that the parties’ positions are framed early in this litigation. Although
9 petitioner provided the California Supreme Court with detailed factual allegations for
10 the constitutional claims asserted in the state habeas corpus petitions and supplied
11 numerous supporting records and declarations, respondent did not address those factual
12 allegations in the state court proceedings. (See, e.g., Informal Response to Petition for
13 Writ of Habeas Corpus, filed Apr. 17, 2003, in In re Jones, California Supreme Court
14 Case No. S110791.) The state court compounded the problem by failing to issue an
15 order to show cause, requiring respondent to file a return setting forth the factual bases
16 for his legal positions, and conducting an evidentiary hearing to resolve any factual
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17 disputes. As noted in the Motion, respondent’s Answer to the Petition for Writ of

18 Habeas Corpus filed in this Court (hereafter “Answer”) – which is a general denial to
19 each and every allegation – obfuscates his legal positions, will produce piecemeal and
20 wasteful litigation, and perpetuates the dysfunctional process.
21
encourage more factual hearings and findings in state habeas proceedings).
22 3
See, e.g., id. at 115 (4) (noting that 70% of cases that have been finally resolved
23 by federal courts have resulted in grants of relief).
4
that “much” of the delay in federal
24 corpusSee, e.g., id. at 123 (23) (noting the absence of a published opinion habeas
proceedings is “attributable to
and/or
evidentiary hearing in the state courts”).
25 5
See Hon. Arthur L. Alarcon, Remedies for California’s Death Row Deadlock,
26 80. S. Cal. L. Rev. 697, 742-43 (2007) (describing the California informal briefing
process and quoting Senator Diane Feinstein’s conclusion that the “absence of a
27 thorough explanation of the [California Supreme] Court’s reasons for its habeas
decisions often requires federal courts to essentially start each federal habeas death
28 penalty appeal from scratch, wasting enormous time and resources”).
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REPLY TO OPPOSITION TO MOTION FOR MORE DEFINITE STATEMENT
CV-09-2158-CJC

In his Opposition to Petitioner’s Motion for More Definite Statement (hereafter

1

2 “Opposition”), respondent concedes that “denying knowledge of the facts alleged in
3 the petition was probably not the most accurate response.”

(Opposition at 8).

4 Nonetheless, respondent asserts that he is exempt from standard pleading requirements
5 by the operation of Title 28 section 2254(d), enacted as part of the Antiterrorism and
6 Effective Death Penalty Act of 1996 (hereafter “AEDPA”). Respondent’s position is
7 incorrect for several reasons.
First, the AEDPA did not alter the pleading requirements in habeas corpus cases

8

9 or the application of the Rules of Civil Procedure.

As Rule 5(b) of the Rules

10 Governing Section 2254 Cases in the United States District Courts (“2254 Rules”)
11 states, and respondent concedes, “[t]he answer must address the allegations in the
12 petition.” 2254 Rule 5(b), 28 U.S.C. foll. §2254. Respondent states his duty under
13 Rule 5 as simply responding to the “allegations” and stating whether any claim is
14 procedurally barred from federal review. (See Opposition at 3.) Respondent’s view
15 that his obligations are satisfied by globally stating that petitioner is not entitled to
16 relief – rather than addressing the factual allegations and raising factual defenses to
17 those allegations – overlooks the requirement that the answer “permit the court and the
18 parties to uncover quickly the disputed issues.” Advisory Committee Notes to 2254
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19 Rule 5. Respondent’s reliance on Williams v. Calderon, 52 F.3d 1465 (9th Cir. 1995),

20 as support for his position that the answer does not require fact-by-fact responses, is
21 misplaced. (Opposition at 3-4.) In Williams, “[t]he answer responded to the petition
22 on the merits, laying out the state’s alternative view of the facts and the law.” 52 F.3d
23 at 1483 (emphasis added); see also Federal Judicial Center, Resource Guide for
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25

6

Respondent addresses the Advisory Committee Notes by asserting that the
26 Answer permits the parties to uncover the disputed issues and repeating his general
legal position concerning section 2254(d). (Opposition at 5.) The Opposition,
27 however, does not explain how such a general denial allows petitioner or this Court to
discern respondent’s “defenses” premised on a counter view of the facts presented in
28 the Petition.
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CV-09-2158-CJC

1 Managing Capital Cases, Volume II: Habeas Corpus Review of State Capital
2 Convictions 16 (2010), available at http://www.fjc.gov/public/pdf.nsf/lookup/Hab103 00.pdf/$file/Hab10-00.pdf (“The scope of the state’s answer … will vary depending on
4 the type of petition the petitioner files.… However, if the petition is a comprehensive
5 filing that includes all grounds for relief, supporting facts, and legal points and
6 authorities, the answer should also be comprehensive, alleging all procedural and
7 substantive defenses.”). In this case, petitioner and the Court remain uninformed of
8 the disputed issues because respondent simply did not provide his view of the facts
9 alleged in the Petition.
Second, respondent’s reliance on the AEDPA as support for his assertion that he

10

11 “need not specifically aver as to which allegations are true, which are untrue, and
12 which are unknown” to him because the California Supreme Court’s rejection of all
13 claims was “reasonable” is similarly unavailing. (Opposition at 3.) Respondent’s
14 repeated invocation of Title 28 section 2245(d) ignores the reality that the California
15 Supreme Court denied the state habeas corpus petitions without any factual
16 development, findings, or legal conclusions. Assuming that section 2245(d) applies to,
7
17 and limits the review of, state court summary adjudications, any application of that

18 provision must be made after this Court determines whether the facts presented by
19 petitioner establish a federal constitutional claim. See, e.g., Davis v. Woodford, 446
20 F.3d 957, 960 (9th Cir. 2006) (“[Petitioner] first raised the claim in a habeas petition
21 before the California Supreme Court, and that petition was denied without comment.
22 Therefore, we undertake an independent review of the record.”); Delgado v. Lewis,
23 223 F.3d 976, 982 (9th Cir. 2000) (“when the state court does not supply reasoning for
24 its decision,” the federal court is required to conduct “an independent review of the
25 record” “to determine whether the state court clearly erred in its application of
26
7

The United States Supreme Court has not resolved whether section 2254(d)
applies to an unexplained summary denial. Knowles v. Mirzayance, 556 U.S. __, 129
28 S. Ct. 1411, 1418 n.2, 173 L. Ed. 2d 251 (2009).
27

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1 controlling federal law.”).

Without the necessary, requested fact-development

2 proceedings, it is impossible for this Court to determine whether the state court
3 decisions were “contrary to, or an unreasonable application of, United States Supreme
4 Court precedent, or resulted in a decision that was unreasonable in light of the
5 evidence presented in the state court proceeding.” See, e.g., Killian v. Poole, 282 F.3d
6 1204, 1208 (9th Cir. 2002) (evidentiary hearing proper because “[h]aving refused
7 [petitioner] an evidentiary hearing on the matter, the state cannot argue now that the
8 AEDPA deference is owed the factual determinations of the California courts”);
9 Marshall v. Hendricks, 307 F.3d 36 (3rd Cir. 2002) (“At the end of the day, our ruling
10 is that the District Court erred in concluding that the State’s application of Strickland
11 was reasonable.

We conclude that the District Court could not make that

12 determination without conducting an evidentiary hearing to explore the claimed
9
13 ineffectiveness of counsel.”).

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See also CCFAJ Report at 149 (89-90) (under the California summary denial
procedure, federal courts do not have the benefit of a prior evidentiary hearing or a
written order with reasons for its decision.)
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Thus, it is unsurprising that, as of June 2008, when the CCFAJ Final Report was
published, in every habeas corpus case that has been finally resolved by the federal
courts, the district courts were required to conduct an evidentiary hearing because the
facts were not developed in the state court proceedings. See, e.g., Alcala v. Woodford,
334 F.3d 862 (9th Cir. 2003); Ainsworth v. Woodford, 268 F.3d 868 (9th Cir. 2001);
Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998); Bloom v. Calderon, 132 F.3d 1267
(9th Cir. 1997); Caro v. Woodford, 280 F.3d 1247 (9th Cir. 2002); Clark v. Brown, 442
F.3d 708 (9th Cir. 2006); Coleman v. Calderon, 210 F.3d 1047 (9th Cir. 2000);
Daniels v. Woodford, 428 F.3d 1181 (9th Cir. 2005); Douglas v. Woodford, 316 F.3d
1079 (9th Cir. 2003); Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998); Frierson v.
Woodford, 463 F.3d 982 (9th Cir. 2006); Ghent v. Woodford, 279 F.3d 1121 (9th Cir.
2002); Grant v. Brown, Order, Civ. S-90-0779 (E.D. Cal. Jan. 12, 2006); Hamilton v.
Vasquez, 17 F.3d 1149 (9th Cir. 2000); Hayes v. Brown, 399 F.3d 972 (9th Cir. en
banc 2002); Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995); Hovey v. Ayers, 458
F.3d 892 (9th Cir. 2006); Howard v. Calderon, Order, CV 88-7240 (C.D. Cal. Sept.
26, 1996); Hunter v. Vasquez, Order, C 90-3275 (N.D. Cal. Dec. 9, 1998); Jackson v.
Brown, 513 F.3d 1057 (9th Cir. 2008); Jackson v. Calderon, 211 F.3d 1148 (9th Cir.
2000); Jennings v. Woodford, 290 F.3d 1006 (9th Cir. 2002); Karis v. Calderon, 283
F.3d 1117 (9th Cir. 2002); Keenan v. Woodford, 2001 WL 835856 (Dec. 21, 1999);
Malone v. Vasquez, Order, 96-4040-WJR, (C.D. Cal Jan. 11, 1999); Mayfield v.
Woodford, 270 F.3d 915 (9th Cir. 2001); McDowell v. Calderon, 130 F.3d 833 (9th
Cir. en banc 1997); McLain v. Calderon, 134 F.3d 1383 (9th Cir. 1998); Melton v.
Vasquez, Order, CV 89-4182 (C.D. Cal. Jan. 19, 2007); Moore v. Calderon, 108 F.3d
261 (9th Cir. 1997); Morris v. Woodford, 273 F.3d 826 (9th Cir. 2002); Murtishaw v.
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Third, respondent’s request to forestall the identification of “factual disputes”

2 until “further briefing” (Opposition at 5) will result in unnecessary delay and
3 piecemeal litigation, both situations counter to the purpose of AEDPA. See, e.g.,
4 Rhines v. Weber, 544 U.S. 269, 277, 125 S. Ct. 1528, 1534, 161 L. Ed. 2d 440 (2005)
5 (recognizing that the AEDPA seeks to streamline federal habeas corpus proceedings).
6 In light of respondent’s general denial of each allegation in the Petition, petitioner
7 must draft the Traverse and the Motion for an Evidentiary Hearing on the assumption
8 that respondent will dispute every fact until some undefined date when respondent will
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9 reveal his true legal position. Thus, petitioner is required to undertake a renewed

10 investigation to support and corroborate the facts, when respondent ultimately will not
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11 dispute many, if not most of those facts, at an evidentiary hearing.

12
2001); Odle
13 Woodford, 255 F.3d 926 (9th Cir. 91-CV-03802v. Woodford, 238 F.3d 1084 (9th Cir.
2001); Ramirez v. Vasquez, Order,
(C.D. Cal. Feb. 5, 2008); Sandoval v.
Cir.
Silva v. Woodford, 416
14 Calderon, 241 F.3d 765 (9th F.3d 2001);(9th Cir. 1994); Williams F.3d 980 (9th Cir.
2005); Wade v. Calderon, 29
1312
v. Vasquez, Order,
90-1212R (S.D. Cal. Sept. 9, 1993); Allen v. Woodford, 395 F.3d 979 (9th Cir. 2005);
15 Anderson v. Calderon, 232 F.3d 1053 (9th Cir. 2000); Babbitt v. Calderon, 151 F.3d
1998); Beardslee
F.3d 560
Bonin v.
16 1170 (9th Cir. F.3d 815 (9th Cir.v. Woodford, 358 Woodford,(9th Cir. 2004); (9th Cir.
Calderon, 59
1995); Davis v.
384 F.3d 628
(9th Cir. 2007); Harris v. Pulley, 692 F.2d
17 2004); Fields v. Woodford, 503 F.3d 755(1984); Morales v. Calderon, 388 F.3d 1159
1189 (9th Cir. 1982), rev’d, 465 U.S. 37
Rayley v.
Rich v. Calderon, 187
18 (9th Cir. 2004);Cir. 1999); Ylst, 470 F.3d 792 (9th Cir. 2006);Cir. 2005); Siripongs v.
F.3d 1064 (9th
Sims v. Brown, 430 F.3d 1220 (9th
Thompson
19 Calderon, 133 F.3d 732 (9th Cir. 1998);Williams v. v. Calderon, 120 F.3d 1045 (9th
Cir. 1997), rev’d, 523 U.S. 538 (1998);
Calderon, 83 F.3d 281 (9th Cir.
1996); Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004).
20 10
Respondent does not explain why petitioner and this Court must proceed
21 without this critical information at this stage. Even if respondent intends to state his
position with respect to the facts in dispute in response to the Motion for an
22 Evidentiary Hearing, petitioner will be forced to expend time and resources preparing
the Traverse and the evidentiary hearing motion unaware of respondent’s factual
23 positions.
11
Respondent asserts that presentation of
new
24 witnesses in support of facts already alleged) tonew facts (and presumably claim
this Court would render a
However, respondent has confused the
claims,
25 unexhausted. (Opposition at 8) See Batchelor v. Cupp, 693 F.2d 859, issue:(9th Cir.
not facts, must be exhausted.
862
“Exhaustion [ does not require that a
... present
26 1982). every piece of ]evidence supporting hishabeas petitionerin order to to the state
courts
federal claims
satisfy the
exhaustion requirement. Rather, to exhaust the factual basis of the claim, the petitioner
27 must only provide the state court with the operative facts, that is, all of the facts
to give application to the constitutional
28 necessaryDavis v. Silva, 511 F.3d. 1005, 1009 principle upon which [the petitioner]
relies.”
(9th Cir. 2008) (internal citations
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Finally, respondent’s acknowledgement that his denial of all facts in the Petition

2 was inaccurate and that he regards the state court record as the “best evidence of the
3 relevant facts” (Opposition at 8) constitutes an admission of the insufficiency of his
4 Answer. Respondent relies on People v. Duval, 9 Cal. 4th 464, 37 Cal. Rptr. 2d 259
5 (1995), as authority for the proposition that the state court presumes true those facts
6 alleged by petitioner at the initial pleading stage of state habeas corpus proceedings.
7 Duval involved the sufficiency of the state’s return to an order to show cause. The
8 court in Duval discussed the court’s disapproval of returns containing only general
9 denials, id. at 479-80, and explained that a return containing a general denial indicates
10 the state’s “willingness to rely on the record.” Id. at 479 (quoting In re Lewallen, 23
11 Cal 3d. 274, 278, 152 Cal. Rptr. 528 (1979)). The court also set forth the rule that
12 when a “respondent is deemed to have admitted those material factual allegations that
13 they fail to dispute,” the issues may be resolved without resort to an evidentiary
14 hearing. Id. (citing In re Sixto, 48 Cal. 3d 1247, 1252, 259 Cal. Rptr. 491 (1989)). By
15 analogy, respondent’s general denial in the Answer and the inference that there will be
16 no evidentiary hearing in this case (Opposition at 2) appear to amount to an admission
17 of all material factual allegations. If this is not respondent’s view, then he should be
18 required to take a position with regard to the facts in this case and to put forward his
19 differing view of those facts.
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21

CONCLUSION
Petitioner’s Motion for a More Definite Statement merely requests that this

22 Court order respondent to disclose his defenses to the legal and factual allegations
23 contained in the Petition. Such disclosure is required by the Rules Governing Section
24 2254 Cases in the United States District Courts and the Rules of Civil Procedure and to
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omitted). New facts render a claim unexhausted only where they “fundamentally alter
27 the legal claim already considered by the state courts.” Vasquez v. Hillery, 474 U.S.
254, 257-59, 106 S. Ct. 617, 620-22, 88 L. Ed. 2d 598 (1986), overruled on other
28 grounds, 8 U.S.C. § 2254(c).
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CV-09-2158-CJC

1 avoid wasteful and inefficient litigation in this case. For the foregoing reasons and the
2 reasons previously stated in, the motion should be granted.
3

Dated: May 10, 2010

Respectfully submitted,

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HABEAS CORPUS RESOURCE CENTER

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By:

/s/ Michael Laurence
MICHAEL LAURENCE
Attorneys for Petitioner Ernest Dewayne Jones

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